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Today in the Community: November 2, 2011

Today in the Community, we are discussing whether the Court is likely to get involved in the disputes over Proposition 8 and the Defense of Marriage Act and, if it does get involved, what it will do.

In Perry v. Brown, the California Supreme Court is considering whether the official proponents of Proposition 8, a ballot initiative that prohibits same-sex marriage in California, have standing to defend the constitutionality of the initiative when state officials have declined to do so.  If it concludes that the proponents do have standing, the matter could get back on a track heading toward the Court sometime soon.  And in July 2010, in Gill  v. Office of Personnel Management , U.S. District Judge Joseph L. Tauro held that Section 3 of the Defense of Marriage Act – which defines marriage for federal purposes as a union between a man and a woman –  is unconstitutional. That case is now the first of the DOMA cases to reach the courts of appeals; the plaintiffs-appellees filed their brief in the First Circuit on October 27. Other DOMA cases have also been percolating in district courts, including Golansky  v. Office of Personnel Management  and Windsor v. United States.  

This summer the blog hosted an online symposium that addressed various questions relating to both the Proposition 8 and DOMA litigation.

Five great comments from yesterday are below. 

Tim Baughman –   

As the Chief of Appeals for the county that obtained the conviction, and litigated it successfully in the state appellate courts—and also as one who filed an amicus brief in support of the Warden—it is not surprising that I believe the Court should reverse the Sixth Circuit’s decision in Lafler v. Cooper. First, the right protected by the Sixth Amendment right to counsel is the right to a fair trial (including its waiver by plea), and defendant had a fair trial. And it is impossible to recreate history and put the parties back in the position they were in before trial. Before trial, the prosecution could withdraw its plea offer even on a whim; now, because counsel arguably did not perform well during plea negotiations, the prosecution is to be put in a position where the conviction it obtained is wiped out, and it must make the same plea offer as made before the successful trial, and now cannot withdraw the offer? That makes no sense. Nor does some “presumption of vindictiveness” which must be overcome if the prosecutor wishes to make a more “severe” offer; it is both unfair, and, in any event, if properly viewed, would always be overcome by the fact that the prosecutor went to trial successfully and thus knows that a conviction at trial is a realistic possibility. And if the remedy is not to require the prosecution to re-offer the same plea agreement, an offer it now cannot withdraw, but to allow a new trial, that makes no sense, as the defendant has already had a fair trial, and the prosecution may have to proceed to trial with a weaker case, given the passage of time (likely a fairly substantial period). No point is served by requiring a second fair trial.

But given existing case decisions, the State has an uphill battle—a battle I believe the Warden should win.


Jenny Roberts –  

Padilla gave the long-ignored process of client counseling about the decision of whether to plead guilty or go to trial its proper Sixth Amendment due. Lafler and Frye present an opportunity to continue that critical discussion, in the larger context of the Court’s seeming willingness to begin to regulate the reality of our current plea-bargaining based criminal justice system. Indeed, at oral argument, several Justices noted the current high rates of guilty pleas.

All parties in both cases agree that counsel for Mr. Frye and Mr. Cooper rendered deficient performance under the first prong of Strickland. However, counseling about a potential guilty plea and the fact that almost all convictions flow from guilty pleas is also a core concern of the contested issue in the cases, that of whether the incompetent lawyering prejudiced either defendant. Missouri and Michigan want to take plea negotiations and the failure to communicate a favorable plea offer out of the prejudice picture, arguing instead that Frye’s later guilty plea and Cooper’s later trial were valid, so that any earlier missed opportunities are irrelevant. This ignores the fact that these missed opportunities were, in a system where plea bargains and guilty pleas dominate, the main event. If a missed opportunity to cut one’s losses, plead guilty, and take ninety days in jail rather than three years (in the case of Frye) or four-to-seven rather than fifteen-to-thirty years (in the case of Cooper) to is not prejudicial, then it is hard to imagine what is.

In deciding Frye, the Court is confronted with a particular (if not completely unique) fact that should not drive the decision: that just days after his original plea offer expired, Mr. Frye was re-arrested. Without this fact, it is easier to focus on the underlying principle that any decision must address: is there prejudice when a person pleads guilty and get a sentence that is significantly longer than the sentence he would have received had his counsel told him about an earlier, more beneficial plea offer? The broader issue is presented in starker, and likely more realistic, light in the absence of the re-arrest. In deciding the prejudice issue, the Court should reject the government’s weakly-supported argument that the Sixth Amendment only protects trial rights (or the waiver of those rights at the moment of entering a guilty plea) and indeed does not even apply to plea negotiations between defense counsel and the prosecution. Such an approach would render the Sixth Amendment meaningless in our plea-driven system, where things like Cooper’s lawyer’s bad advice about his chances at trial or Frye’s lawyer’s failure to communicate the plea offer are the most significant moments in the case.


Kent Scheidegger –

The starting point here is to remember what a drastic measure it is to overturn a judgment for ineffective assistance of counsel. Where else in American law can a judgment in favor of a party who did nothing wrong be reversed for the failings of opposing counsel?

This unique ground of reversal is allowed in criminal law alone because the stakes in criminal law are unique. The conviction of an innocent person is an otherwise irreparable harm, not compensable by a malpractice action against the attorney. It is to guard against a miscarriage of justice that we allow a result that otherwise seems absurd, and this unique remedy should be confined to that situation.

The general principle of the Strickland “prejudice” prong is that ineffective assistance is a ground to overturn a judgment only when we have reason to lack confidence in the result. For most cases, this general principle is crystallized in the specific rule that “prejudice” means there is a reasonable probability of a different result if counsel had acted differently. But that test does not always apply. There are some situations where an attorney might have gotten the defendant off with less, yet we do not doubt the reliability of the result. These include making a pitch for jury nullification (Strickland), letting the client commit perjury (Nix v. Whiteside), or making an argument of law that might have been accepted at the time but is now known to be incorrect (Lockhart v. Fretwell).

In both of the Cooper and Frye cases, the defendants were convicted of crimes they actually committed and received sentences no greater than they deserved. We have no reason to doubt the reliability of the result. The fact that a better lawyer might have gotten them an undeserved windfall is insufficient reason to overturn the judgments.

Reinstatement of the plea bargain would also be a bizarre result after trial, as in the Cooper case. Avoiding trial was the consideration for which the prosecution offered the bargain. That is like someone who rejects your offer to buy his car and later wants to go through with the deal, but he has wrecked the car in the meantime. He still wants you to perform your part of the bargain when he can’t possibly perform his.

As counsel for Frye noted at argument, there is no perfect solution. He was quite wrong about what is the least imperfect solution. Given that the process has ended at a just result for the crime committed, the least imperfect solution is to let the judgment stand.


Roxanne Friedman –  

The starting point here is to remember just how bad representation is at the state trial court level and just how high the standard for ineffective assistance is. There are still lots of places here in the South where defendants don’t see their lawyer between arraignment and trial date, where lawyers depend on the good graces of prosecutors and judges to maintain their practices, where motions practice is perfunctory, where fees for investigators and experts are unavailable or inadequate, where there are so many appointments that a single lawyer or law office can’t give individual attention to any case. Ineffective assistance is not malpractice, it is a symptom of a system which offers only enough due process to sustain a conviction. So that makes habeas the only effective remedy.


Peter Goldberger –  

Kent: Your query (“Where else in American law can a judgment in favor of a party who did nothing wrong be reversed for the failings of opposing counsel?”) has a false premise, which was exposed and debunked in Cuyler v. Sullivan, 446 U.S. 335, 342-45 (1980). The Court held there, on the way to explaining that privately-retained counsel can render constitutionally-ineffective counsel, that the duty under the 14th Amendment to ensure a fair criminal process, including effective counsel for the accused, always rests, in the end, on the State — not on the prosecutor, of course, but on the State as a whole. When defense counsel renders ineffective assistance, it is not correct to suggest that the adverse “party” — that is, the State — has done “nothing wrong.”

Recommended Citation: Kali Borkoski, Today in the Community: November 2, 2011, SCOTUSblog (Nov. 2, 2011, 9:24 AM),